{"title":"Constitutionalizing Corporate Law","authors":"Elizabeth Pollman","doi":"10.2139/SSRN.2661115","DOIUrl":null,"url":null,"abstract":"The Supreme Court has recently decided some of the most important and controversial cases involving the federal rights of corporations in over two hundred years of jurisprudence. In rulings ranging from corporate political spending to religious liberty rights, the Court has dramatically expanded the zone in which corporations can act free from regulation. This Article argues these decisions represent a doctrinal shift, even from previous cases granting rights to corporations. The modern corporate rights doctrine has put unprecedented weight on state corporate law to act as a mechanism for resolving disputes among corporate participants regarding the expressive and religious activity of business corporations. The result is a new reliance on state corporate law that gives a quasi-constitutional dimension to governance rules that were developed in a different era and with a different focus. The Article further illuminates the specific areas of mismatch between modern corporate rights doctrine and state corporate law. This examination offers two insights often overlooked in contemporary debate. First, it provides a deeper grounding for understanding where the Court has gone wrong and the importance of corporate governance proposals raised in the aftermath of its recent decisions. Second, the Article shows that the significance of the Court’s decision in Burwell v. Hobby Lobby Stores, Inc. extends beyond issues of women’s rights and sexual orientation, as is often emphasized. The decision undermines the very assumptions on which corporate law has been built: that private ordering and external regulations can be relied upon to address concerns that corporate law has been given a pass to ignore.","PeriodicalId":47503,"journal":{"name":"Vanderbilt Law Review","volume":"69 1","pages":"639"},"PeriodicalIF":2.4000,"publicationDate":"2015-09-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":"12","resultStr":null,"platform":"Semanticscholar","paperid":null,"PeriodicalName":"Vanderbilt Law Review","FirstCategoryId":"90","ListUrlMain":"https://doi.org/10.2139/SSRN.2661115","RegionNum":3,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":null,"EPubDate":"","PubModel":"","JCR":"Q1","JCRName":"LAW","Score":null,"Total":0}
引用次数: 12
Abstract
The Supreme Court has recently decided some of the most important and controversial cases involving the federal rights of corporations in over two hundred years of jurisprudence. In rulings ranging from corporate political spending to religious liberty rights, the Court has dramatically expanded the zone in which corporations can act free from regulation. This Article argues these decisions represent a doctrinal shift, even from previous cases granting rights to corporations. The modern corporate rights doctrine has put unprecedented weight on state corporate law to act as a mechanism for resolving disputes among corporate participants regarding the expressive and religious activity of business corporations. The result is a new reliance on state corporate law that gives a quasi-constitutional dimension to governance rules that were developed in a different era and with a different focus. The Article further illuminates the specific areas of mismatch between modern corporate rights doctrine and state corporate law. This examination offers two insights often overlooked in contemporary debate. First, it provides a deeper grounding for understanding where the Court has gone wrong and the importance of corporate governance proposals raised in the aftermath of its recent decisions. Second, the Article shows that the significance of the Court’s decision in Burwell v. Hobby Lobby Stores, Inc. extends beyond issues of women’s rights and sexual orientation, as is often emphasized. The decision undermines the very assumptions on which corporate law has been built: that private ordering and external regulations can be relied upon to address concerns that corporate law has been given a pass to ignore.
期刊介绍:
Vanderbilt Law Review En Banc is an online forum designed to advance scholarly discussion. En Banc offers professors, practitioners, students, and others an opportunity to respond to articles printed in the Vanderbilt Law Review. En Banc permits extended discussion of our articles in a way that maintains academic integrity and provides authors with a quicker approach to publication. When reexamining a case “en banc” an appellate court operates at its highest level, with all judges present and participating “on the bench.” We chose the name “En Banc” to capture this spirit of focused review and provide a forum for further dialogue where all can be present and participate.